Miss D Fercik v Grovewise Consultants Ltd T/a Forte Reliable Staffing Agency and Best Recruitment and Compass Group UK and Ireland Ltd: 6000499/2023
EMPLOYMENT TRIBUNALS
Case No 6000499/2023
Between
Miss D FercikClaimant1) Grovewise Consultants Ltd trading as Forte Reliable Staffing Agency & Best Recruitment 2) Compass Group UK & Ireland LtdRespondentDate 20 May 2024
REASONS
[1]By letter dated 18 July 2024, the first respondent makes an application to the tribunal to reconsider the judgment dated 20 May 2024.[2]Regrettably, due to an oversight on the part of the tribunal staff, the written reasons for that decision were not sent to the parties until 18 July 2024, despite the fact that they were dated 20 May 2024.[3]Little turns on that point except that the application for reconsideration is clearly in time.[4]The application asserts that the respondent withdrew its skeleton argument on my advice and, therefore, the respondent was surprised to note that it was referred to in the written reasons.[5]The application also asks the tribunal to consider new evidence being “that we request for the original skeleton argument, as prepared by our appointed solicitor, to be withdrawn and replaced with the information and facts detailed below in our own words as opposed to legal representation. This has become an extremely 1 of 3 personal claim and therefore we feel obliged to put forward our case personally.”
The Law
[6]The application is made pursuant to rule 70 of the Employment Tribunal Rules of Procedure, which provides as follows. 70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again[7]The application for reconsideration is made under rule 71 of the Employment Tribunal Rules of Procedure. The process under rule 72, is for the judge to consider the application and determine, first, whether he or she considers that there is no reasonable prospect of the original decision being varied or revoked. If the judge is of that view, the application must be refused otherwise the views of the other parties to the case must be sought.[8]In approaching the application for reconsideration I have considered the cases of of Flint v Eastern Electricity Board [1975] ICR 395 and Outasight VB v Brown [2015] ICR D11. The principles set out in those judgments are helpfully summarised in the more recent case of Ministry of Justice v Burton [2016] ICR 1128, where at paragraph 21 the Court of Appeal stated “An employment tribunal has a power to review a decision “where it is necessary in the interests of justice”: see rule 70 of the Employment Tribunals Rules of Procedure 2013. This was one of the grounds on which a review could be permitted in the earlier incarnation of the rules. However, as Underhill J pointed out in Newcastle upon Tyne City Council v Marsden [2010] ICR 743, para 17 the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray & Vials [1994] ICR 384 Mummery J held that the failure of a party’s representative to draw attention to a particular argument will not generally justify granting a review. In my judgment, these principles are particularly relevant here” Analysis[9]I have no recollection of a discussion with the respondent about the withdrawal of its skeleton argument and it is not my practice to advise parties to do anything. Having no recollection of any discussion, it is not possible for me to categorically deny that it occurred, but it seems likely to me that if there was a discussion about the respondent’s skeleton argument, the discussion has either been misunderstood by the respondent or is being taken out of context. If the proceedings were recorded that it may be possible for the respondent to obtain a transcript.[10]Having said that, I do not consider the point needs resolution before the application for reconsideration can be dealt with. Since I quoted from the skeleton 2 of 3 argument in the reasons (which were written on the day of the hearing) it is apparent that I was not deciding the case on the basis that the respondent could not or should not advance the arguments which were set out in its skeleton argument. The reasons show that I was not quoting from the skeleton argument in order to disadvantage the respondent but rather to ensure that I had considered all of its arguments. The application does not suggest that any arguments were made at the hearing which were overlooked. Thus, even if the skeleton argument should have been disregarded, that would not have led to a different outcome to the respondent’s application.[11]The substance of the respondent’s application for reconsideration is that it now wishes to advance new arguments which are to be treated as replacing the skeleton argument. However, it is not appropriate to reconsider a judgment simply to allow one party to advance different arguments to those raised at the hearing unless those arguments could not reasonably have been advanced at the hearing. All of the arguments set out in the application could have been advanced at the hearing. The principle of finality means that it is inappropriate to use a reconsideration application for such a purpose. There is no reasonable prospect of application for reconsideration succeeding and it is dismissed.[19]The power to strike out an ET claim is provided by Rule 37 of Schedule 1 of the 2013 Rules, which allows that an ET may strike out all or part of a claim on the basis that it has no reasonable prospect of success. This is, for example, to be contrasted with an ET’s power to order that an allegation or argument may only be pursued upon the payment of a deposit, which requires that the ET consider that the allegation or argument in question has little reasonable prospect of success.[20]In Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 CA, Lord Justice Maurice Kay stated as follows: “29. … It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. …”[21]Guidance was further provided by the EAT in Balls v Downham Market High School & College [2011] IRLR 217 at paragraph 6. “6. Where strike out is sought or contemplated on the ground that the claim has no reasonable prospects of success … the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word ‘no’ because it shows that the test is not whether the claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects.” (Original emphasis)[22]More specifically, in Tayside Public Transport Co Ltd t/a Travel Dundee v Reilly [2012] IRLR 755 CS, it was noted that in almost every case the decision in an unfair dismissal claim is fact-sensitive, and it was further observed that: “30. … where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the tribunal to conduct an impromptu trial of the facts …”[23]And further, where there is a dispute as to the reason for the dismissal, it has been stated that it would be very rare indeed that the dispute could be resolved without hearing from the party or parties who actually made the decision (per Langstaff J in Romanowska v Aspirations Care Ltd UKEAT/0015/14 at paragraph 15). As for discrimination cases, it has been recognised that involving, as they do, an investigation as to why an employer took a particular step, they will generally (allowing for the exceptional case) Whilst there is no ban on striking out a discrimination claim at an early stage, there is a public interest in such claims being heard (Ukegheson v Haringey London Borough Council [2015] ICR 1285, para 4). 12. However, there are cases where it is proper to strike out a claim. In Ukegheson it was pointed out that “the purpose, as it seems to me, of the provision of the strike-out rule is twofold. In an appropriate case it serves to avoid the exposure of a respondent to unnecessary expense. A respondent may not be able to recover its costs of defending a labyrinthine, detailed, lengthy claim, which may be ill-formulated and which may take several days of hearing brought by a party who, if they lose, will have no substantial assets with which to pay any award of costs to which the respondent might otherwise be entitled under the costs provisions in the Rules. However, its other and central purpose is to provide for straightforward and obvious cases where, on any showing, there is no prospect in reality of success (other than perhaps a fanciful one) to be removed from consideration and in that way preserve the resources of the court and the parties and ensure that other cases have a better chance of being heard promptly before the tribunal” (para 23). 13. In Chandhok v Tirkey [2015] IRLR 195, the Employment Appeal Tribunal held Neither party complained directly of this error of approach in the notice of appeal or respondents' notice. Both sought to take advantage of the licence it gave to make wide-ranging submissions about 'caste', and assert 'facts' in respect of the present case, though Mr Ford QC for the intervener was more circumspect. It was, however, argued that those occasions on which a strike out should succeed before the full facts of the case struck-out had been established in evidence were rare. This is particularly so where the claim is one of discrimination. Such a claim will centrally require a tribunal to establish why an employer acted as it did. That will usually require an evaluation of the reasons which the relevant decision-maker(s) or alleged discriminators had for acting as they did. Such an evaluation depends, often critically, upon what may be inferred as well as proved directly from all the surrounding circumstances, including evidence of the behaviour (whether by word, deed, or inaction) of such individuals not only contemporaneously to the events complained of but also in the past and, sometimes, even since the events on which the claim was founded; and it may include an assessment, in the light of the evidence that was called, of whether the failure to call other evidence was of significance. These can often be challenging assessments, all the more so where there are complications of language and culture. Considerations such as these led Lord Steyn in Anyanwu v South Bank Students' Union and South Bank University [2001] IRLR 305 HL to express the view at paragraph 24 (echoed by Lord Hope in his paragraph 37) as follows: 'In the result this is now the fourth occasion on which the preliminary question of the legal sustainability of the appellants' claim against the university is being considered. For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally factsensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest. Against this background it is necessary to explain why on the allegations made by the appellants it would be wrong to strike out their claims against the university.' This stops short of a blanket ban on strike-out applications succeeding in discrimination claims. There may still be occasions when a claim can properly be struck out – where, for instance, there is a time bar to jurisdiction, and no evidence is advanced that it would be just and equitable to extend time; or where, on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic which (per Mummery LJ at paragraph 56 of his judgment in Madarassy v Nomura International plc [2007] IRLR 246 CA): '... only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.' Or claims may have been brought so repetitively concerning the same essential circumstances that a further claim (or response) is an abuse. There may well be other examples, too: but the general approach remains that the exercise of a discretion to strike-out a claim should be sparing and cautious. Nor is this general position affected by hearing some evidence, as is often the case when deciding a preliminary issue, unless a tribunal can be confident that no further evidence advanced at a later hearing, which is within the scope of the issues raised by the pleadings, would affect the decision. 14. In Ahir v British Airways [2017] EWCA Civ 1392, the Court of Appeal gave the following guidance 16. There is force in Mr Burns's point. Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. … 24…As I already said, in a case of this kind, where there is on the face of it a straightforward and well-documented innocent explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation is not the true explanation without the claimant being able to advance some basis, even if not yet provable, for that being so. The employment judge cannot be criticised for deciding the application to strike out on the basis of the actual case being advanced 15. In considering whether to strike out a claim or order a deposit the tribunal must adopt a two-stage approach: first, the tribunal must decide whether one of the specified grounds for striking out has been established and, secondly, if one of the specified grounds for striking out has been established, “to decide as a matter of discretion to order the application be struck out, amended or, if there is an application for one, that a prehearing deposit be given” (696, para. 15), HM Prison Service v Dolby [2003] IRLR 694. The law on agency workers 16. Section 83 Equality Act 2010 provides as follows (2) “Employment” means—(a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work; 17. It is well established law that it is not usually necessary to imply a contract of employment between an agency and their workers or an end user and agency staff (James v Greenwich London Borough [2007] ICR 577). Nevertheless, each case must be decided on its facts. 18. The 2nd respondent, who was the end user, accepts that if its staff were guilty of discrimination on the grounds of race as against the claimant it would be liable under section 41 Equality Act 2010. 19. The 1st respondent denies that it would be liable for any acts of discrimination because it denies that it is an employer within the meaning of section 83 Equality Act 2010. 20. In Victor-Davis v London Borough of Hackney UKEAT/1269/01 it was held that “Where an employee found himself managed by a person who was not in the same employment but was a contractor, it was established that the proper approach to determining the liability of the employer was to consider whether, when doing the discriminatory act, the discriminator was acting on authority conferred by the employer” (taken from the All England direct law report). Other Relevant Provisions in the Equality Act 2010 21. The burden of proof in a discrimination claim is governed by section 136 Equality Act 2010: (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. 22. Section 109 Equality Act 2010 provides: (1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer. (2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal. (3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval. (4) In proceedings against A's employer(b) (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A— (a) from doing that thing, or (b) from doing anything of that description. Discussion and Conclusions The First Respondent’s Arguments 23. The 1st respondent’s arguments on why the race claim should be struck out are set out in its skeleton argument. Its primary point appears to be that it was not an employer for the purposes of the Equality Act 2010. It relies upon an absence of mutuality. It’s second argument is that the claimant was only asked to do jobs which were within the role for which she was engaged and the claimant’s comparator is not an appropriate comparator because they were a permanent member of the 2nd respondent’a staff. The skeleton argument also refers to the statutory defence and the case of Victor-Davis v London Borough of Hackney UKEAT/1269/01 as authority for the proposition that “a discriminatory act, done by a person without the knowledge or approval of the 1st respondent as the employment business, cannot be deemed to have been done by the 1st respondent, where the 1st respondent has taken such steps that are practical to prevent the discrimination”. The skeleton argument goes on to assert that the claim should be struck out because of the claimant’s conduct.
Discussion and Conclusions
[24]In respect of the claim of unauthorised deduction from wages the 1st respondent points out that the claimant was, in fact, paid £10.50 per hour for the full shift on 7 November 2022 and she did not work on 9 November 2022 and was not entitled to be paid for that day. The Second Respondent Arguments[25]The 2nd respondent adopts the 1st respondent’s arguments but somewhat more forcefully points the tribunal to the job descriptions for the roles which the claimant was asked to do (in the bundle at pages 176 and 178) and asserts that the claimant was not asked to do anything which was not in her job description. It also points out that there is nothing to link the claimant’s treatment to her race and asserts that even if the claimant was asked to do the more menial jobs by the permanent members of staff that is to be expected in an agency situation. It is not something from which the tribunal could conclude that the claimant’s treatment was on the grounds of her race. The 2nd respondent also asserts that the claim should be struck out because it is not possible to have a fair trial because it is not clear who the people are that the claimant makes allegations against. The claimant’s arguments[26]The claimant’s arguments were lengthy and wide-ranging (I make no criticism in that respect) and it is not possible for me to record all of them. She said in the course of her submissions she thought that hers was a case of discrimination because the British woman who made her do the extra tasks was taking it easy and wanted to use her like Cinderella and that although the other person, the man, who had required her to do those tasks was both foreign and being treated in the same way as the claimant he had adjusted to his treatment. The claimant disputed that the job descriptions provided by the respondents were accurate and asserted that she only ever agreed to go and work as a Catering Assistant /Dining Room Assistant. She reiterated that she was telling the truth and that the way she considered she had been treated was shocking. She pointed out that people from overseas know when they are being treated unfairly on the grounds of their race in a way in which British people would not know, unless the British people themselves were being discriminated against, for instance if they were living in Spain and being discriminated against. She told me that the 2nd respondent’s chef was from Eastern Europe and when he realised the way that the claimant was being treated and the work that she had been booked for, he spoke to the British woman and made her back off.[27]The claimant confirmed that the lack of work being offered to her after 7 November 2022 was not because of her race but because of her injured foot. She says that one can see the type of person Mr Barber of the 1st respondent is by the fact that he did not pay her the correct hourly wage until she had raised it with him. The claimant asserts that he was seeking to keep the 50p per hour for himself. The Documentary Evidence[28]The agreement between the claimant and the 1st respondent is at page 78 of the bundle. At paragraph 2 it states “for the avoidance of doubt these Terms shall not give rise to a contract of employment…” However, at paragraph 6 it states that “the Temporary Worker is on a probationary period as a temporary employee for 12 months.” At paragraph 7 the terms state “the Temporary Work is not obliged to accept any assignment… But if he does so, during every assignment and afterwards, as appropriate, he will: –…” And those in set out a number of obligations on the worker. Conclusions- Race Discrimination[29]I do not consider that the 1st respondent’s argument that it cannot be liable for any discrimination of the claimant suffered because it was not the claimant’s employer within the meaning of section 83 Equality Act 2010 is correct.[30]The definition of employee under that section includes somebody who acts under a contract to personally do work.[31]Although the 1st respondent says that the contract between it and the claimant meant that there was no mutuality of obligation, in my judgment at the time when the claimant was on an assignment there was mutuality of obligation. That much is clear from paragraph 7 of the terms of engagement and from the fact that the 1st respondent had to pay the claimant for that work. Even if there was no overall mutuality of obligation, once the claimant was on assignment that mutuality existed. At that point the claimant was somebody who was being employed under a contract personally to do work.[32]It was at that point the claimant says that she was discriminated against. The respondent has not argued that if there was a contract of employment it was not responsible for the person who carried out the discrimination albeit that it referred in its skeleton argument to Victor-Davis but, in any event, that point is not amenable to determination on a strike out or deposit application. It is fact sensitive and it will be necessary for a trial to take place to determine the factual matters around that allegation.[33]Although the 1st respondent’s skeleton argument refers to the defence under section 109 Equality Act 2010, I do not consider that this argument means that the claimant’s claim has little prospect of success. The defence is not pleaded and in the skeleton argument the points advanced in favour of such a defence are thata. the 1st respondent explained the terms of the contract to the claimant prior to engagementb. the 1st respondent entered into an agreement with the 2nd respondent on the terms that the 2nd respondent would comply with all relevant statutory provisionsc. the case of Victor-Davis applies.[34]I do not consider that those points are compelling reasons to assume that the 1st defendant will succeed in a defence under section 109 Equality Act 2010 even if it applies to amend its response refence to plead such a claim. It seems to me they fall somewhat short of showing that the first respondent took all reasonable steps to prevent the claimant being discriminated against.1[35]The claimant does not accept the documents which have been provided by the respondent and is adamant that she was only ever engaged for a role which would take place outside the kitchen and in the dining room. That is a dispute of fact which can only be resolved at trial.[36]I also do not accept the arguments of the 1st and 2nd respondent that a fair trial is no longer possible. Although the 2nd respondent argues that it does not know who the allegations are made against, the claimant has given as much information as she can. Mr Joicey, for the 2nd respondent, told me that there were 8 permanent workers on shift that day and they have not been interviewed to discover what they remember of the day or what evidence they can give. In those circumstances I am not satisfied that a fair trial is no longer possible. There is no suggestion that any evidence has been lost due to the passage of time and the passage of time itself is not necessarily evidence that a fair trial cannot take place. The limitation period for claims in civil proceedings is 6 years. It is, therefore, considered that a fair trial can take place in respect of civil matters even if a claim is not issued until 6 years after the event. The delay in this case is not significant and I am not satisfied that any delay is the fault of the claimant in any event. This is the first hearing which has been held in this case.[37]Where, however, I consider the respondent’s arguments are significantly stronger is that there is no evidence that the claimant was treated in the way that she was because of her race. I asked the claimant why she says that if the 1 after this application had been heard, the 1st respondent indicated that it did not seek to amend its response in any event. agency had sent a British worker along on the 7 November 2022, that person would have been treated any differently to her. The claimant can point to no facts to suggest that such a person would have been treated differently. It is at least as likely that the claimant was treated in the way that she was because she was an agency worker as it is that she was treated in the way that she was because she was East European. It is not sufficient for the claimant to point to a difference in status and a difference in treatment in order to succeed in a discrimination claim. She must adduce some evidence from which the tribunal can conclude that she was treated in the way that she was because of race. The claimant’s assertion that non-British people know when they are being treated in a certain way because of their race is not such evidence.[38]Having said that it remains possible that at trial evidence will come to light which will enable the claimant to succeed in her race discrimination claim but I do not consider it is likely. I conclude that whilst it is not possible to say the race claim has no reasonable prospect of success, it does have little prospect of success and therefore a deposit should be ordered. Conclusion – Deduction from Wages[39]The claimant accepts that she carried out no work on 9 November 2022 to be paid for. She says she could not do so because of the events on 7 November 2022. In those circumstances the loss that she claims in that respect is not properly to be considered a claim of deduction from wages but, properly, is to be considered as part of the losses which flow from any discrimination which occurred on 7 November 2022.[40]In respect of the difference between being paid £10 per hour and £10.50 per hour, the claimant accepts that she was paid the right amount at the right time. Her complaint is that she had to insist on being paid the correct amount. Again, therefore, she has not suffered any loss in terms of deduction from wages.[41]In those circumstances I am satisfied claim of deduction from wages has no prospect of success and should be struck out and I order accordingly.